Samuel Goldberg has been a Massachusetts criminal defense attorney for 20 years. Prior to that, he was a New York state prosecutor. He has published various articles regarding the practice of criminal law and frequently provides legal analysis on radio and television, appearing on outlets such as the Fox News Channel, Court TV, MSNBC and The BBC Network. To speak to Sam about a criminal matter call (617) 492 3000.

So far this week, The Boston Criminal Lawyer Blog has dealt with the hot button criminal offenses that fall under the category of “sexual crimes”. They have ranged from child pornography to actual Massachusetts sexual assault and battery. Although not necessarily a specific crime that is outlawed by a particular statute, the reality is that the crime of “Evil thoughts” has also been involved. I refer, of course, to the “gentleman” who’s defense is that he merely fantasized about kidnapping, killing and eating little children. The prosecution, you recall, argued that that fantasy was not only in the planning stage of coming true, but that he was guilty of crimes that were almost beyond description they were so bad.

You will also recall, of course, they were very easily described. It’s called “possession and dissemination of child pornography”. There was no evidence that he ever touched or molested any child.

We discussed a more typical sex crimes case in which the defendant is accused of actually molesting a nine-year-old child. No evidence of deadly fantasies but evidence of actual sexual assault.

To be sure, both cases involve heinous sexual crimes. Crimes that, directly or indirectly, hurt people. Crimes that hurt kids. In fact, as an update, the news has reported that families of some of the children ha ha who’s photographs were among the child pornography in the first case are already seeking financial restitution… either in criminal or civil court. You may also be assured that the girl, and perhaps some of her friends who witnessed the event, in the second case, are likely to be seeking damages in a lawsuit in the near future.

Both defendants, to be sure, if guilty, can be said to be threats to society. Interestingly, however, the actual alleging sexual assaulter was not subject to a dangerousness hearing. Instead, the Commonwealth asked that he be held on very high bail because he was such a threat. The Commonwealth’s remedy in such cases is supposed to be a dangerousness hearing. Bail is for the purposes of ensuring the defendants return to court. But, that’s a point we have discussed many times in the past and I am sure will again. Not today.

Today, let’s talk about the aspect of these cases that could affect you.

Attorney Sam’s Take On “Crimes” Of Thought

I feel it is necessary to repeat a point that I made earlier. Both defendants are charged with heinous and serious felonious acts. The gent convicted for child pornography, is also clearly disturbed in a very dark way. However, the government argued that he was practically a serial killer by way of what was going on inside of his head. Yet, there was no evidence of his ever attacking or harming anyone directly. The government seemed to spend most of its argument against him by talking about what was going on in his head. The government called it the planning of unspeakable acts and the defense called it fantasy.

Does the difference between the two really matter in terms of criminal prosecution? Actually, I would say, “no”. There are no laws, yet, that control what one thinks about. Indeed, experts will tell you that being able to engage in dark, even evil, fantasy is not necessarily unhealthy. Further, it is understood that many people who never have and never would engage in criminal actions against someone may have dark fantasies.

This defendant seemed to have gone a little further than merely keep the fantasies in his mind. He discussed them with like-minded individuals. Again, not a crime. He set up a part of his home like a dungeon that would be used if he had actually follow through and attempted to commit criminal acts against children such as that which he described. Again, the mere setting the room As he did was not, in itself, a crime.

So, then, what was the purpose of the government spending so much of its argument time making the defendant sound so much like an actual serial killer and eater of children?
You may be expecting me to rant and rave about how despicable it was for the government to argue about that conduct. Actually, however, under the law, especially federal law, it was quite relevant.

Under the federal sentencing guidelines, all kinds of information which one might think is irrelevant, may be considered by the court in delivering it’s sentence. This even includes criminal charges for which the defendant was found Not guilty of or even never charged for. An argument could certainly be made that the defendant was in the process of making his evil dreams come true. Arguments that the defendant was a threat to society are also relevant in such sentencing hearings under federal law.

Unfair? Maybe, maybe not. It doesn’t matter though. It is the law. At least the way things stand now.

So, what does this have to do with you?

I am going to go out on a limb here and assume that you, my dear reader, are a human being. Sorry, but it is probably so.

Because you are a human being, I’m going to further assume that you have human foibles and are not the picture of perfection. Sometimes you have what most of us would call “bad thoughts”. Even “dark fantasies”.

“yes, Sam. However, I would not be engaging in these other criminal acts.”

As you say. However, that does not mean that you will never be accused of having committed a criminal act. This is a point that we have discussed more than any other. As we have often discussed, while the cases pending, you will be “presumed innocent” yet “assumed guilty”. Any past misdeeds, mental or actual, can come back to haunt you. Any past deeds will be reviewed in the light least favorable for you when it comes to questions of bail and appropriate criminal sentence.

“Wait a minute. Don’t I have to be convicted before we start talking about a criminal sentence?”

As far as the prosecution is concerned, you are already convicted. It is simply the matter of convincing a judge or jury.

“So what am I supposed to do? Make sure that I never have been an impure thought?”

No, as I have already said, I am assuming that you are a human being. As I have also argued in these blogs, there are unfairness is built into the system. I believe that changes need to be made. No changes can, all will, be made unless and until people understand the truth behind the system.

One of the primary purposes of my blog is to inform the people as to those truths. These warnings may not come in time for you to do anything about them should you be accused of the crime. However, certainly, the first step you want to standing the reality.

As anyone who has been accused of a crime, guilty or innocent, will tell you, being prosecuted is a nightmare. If it is a situation that also involves agencies like the Department of children and families, it is more than a nightmare. It is a travesty in the making.

No, I don’t expect that you will be able to have full mind control and never think a bad thought. However, be aware of those thoughts, and acting in any way upon them, put you in danger whether or not you would ever actually try to make them come true.

“So what can I do?”

The most effective thing? As soon as there is even a hint that a criminal investigation or charge is coming your Way, enlist the services of an experienced criminal defense attorney. If that attorney is truly experienced, he or she will know how to best protect you and advise you. if that attorney is talented, that attorney is your best bet in getting out of the criminal justice nightmare.

By publishing this information on this Web site, the Boston, Massachusetts law firm of Altman & Altman LLP is not claiming to represent any clients or cases mentioned here. The content provided is designed to inform readers and is not intended as legal advice.